Citation Nr: 1031480
Decision Date: 08/20/10 Archive Date: 08/24/10
DOCKET NO. 06-16 148 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Whether the June 2005 Department of Veterans Affairs (VA)
Regional Office (RO) decision denying an effective date earlier
than November 20, 1997, for service connection for solar
urticaria, which claim was based upon an assertion of clear and
unmistakable error (CUE) in a July 1969 decision which had
previously denied service connection for that disease, should be
vacated.
ATTORNEY FOR THE BOARD
Dan Schechter
INTRODUCTION
The Veteran had active service from January 1942 to December
1945, February 1947 to February 1949, and May 1949 to November
1952.
This appeal came before the Board of Veterans' Appeals (Board)
from a June 2005 rating decision by the above Department of
Veterans Affairs (VA) Regional Office (RO). The Board issued a
decision in the appeal in February 2007. The Veteran appealed
that decision to the United States Court of Appeals for Veterans
Claims (Court), and the Court, in a February 2009 Memorandum
Decision, vacated the Board's decision and remanded the case for
further action by the Board consistent with the Court's decision.
The appeal was previously advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Board received a letter from the appellant's attorney, with a
March 2009 statement from the Veteran's physician, to the effect
that, for health reasons, advancement on the docket continued to
be warranted. The Board accordingly reviewed the case on an
expedited basis, and denied the claim in April 2009. The Veteran
then again appealed the claim to the Court. Following the
issuance of the Memorandum Decision by the Court, the attorney
filed a Withdrawal of Representation, with a copy to the Board,
in May 2009.
FINDINGS OF FACT
1. A June 2005 RO decision denied an effective date earlier than
November 20, 1997, for service connection for solar urticaria,
based on alleged CUE in a July 1969 decision.
2. By an April 16, 2009, decision, the Board denied an
effective date earlier than November 20, 1997, for service
connection for solar urticaria claimed based on CUE in the July
1969 decision.
3. The Veteran in May 2009 filed a Notice of Appeal (NOA) of the
April 16, 2009, Board decision with the Court.
4. The Veteran died on August [redacted], 2009. At the time of the
Veteran's death, his appeal was still pending in the Court.
5. In a November 2009 Memorandum Decision, the Court, citing
Landicho v. Brown, 7 Vet. App. 42 (1994), dismissed the appeal to
the Court for lack of jurisdiction due to the death of the
Veteran, and ordered the April 16, 2009, decision of the Board to
be vacated.
CONCLUSION OF LAW
Vacating of the RO's June 2005 decision addressing the issue of
entitlement to an effective date earlier than November 20, 1997,
for service connection for solar urticaria based on CUE in the
July 1969 decision, is warranted. 38 U.S.C.A. §§ 7103(c),
7104(a) (West 2002); 38 C.F.R. § 20.904 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Citing Tobler v. Derwinski, 2 Vet. App. 8, 11 (1991), the Court
in Landicho v. Brown, supra, concluded that a filing of a notice
of appeal (NOA) with the Court renders the appealed Board
decision nonfinal. The Court in Landicho further held that
pursuant to 38 C.F.R. § 20.1104, because the Board decision had
subsumed the appealed RO decision, that RO decision was also
rendered nonfinal by the NOA filing. Id. The Court in Landicho
ultimately found, based on this non-finality of underlying
decisions by virtue of NOA filing, that it had authority to
vacate the underlying Board decision based on the Veteran's
death, and did so vacate. The Court in Landicho then directed
the Board to vacate the underlying RO decisions. Id., at 54, 55.
In the present case, the Board in an April 16, 2009, decision
denied an effective date earlier than November 20, 1997, for
service connection for solar urticaria, with that claim based
upon the appellant's assertion that clear and unmistakable error
had been committed in the a July 1969 decision which had
previously denied service connection for that disorder.
The Veteran in May 2009 entered a timely pro se Notice of Appeal
with the Court. However, on August [redacted], 2009, he died.
Citing Landicho, supra, the Court by a November 2009 Memorandum
Decision dismissed the appeal to the Court for lack of
jurisdiction and ordered that the appealed April 16, 2009, Board
decision be vacated.
Pursuant to Landicho¸ upon the Court's order to vacate the April
16, 2009, Board decision, the Board is required to vacate the
underlying RO decision, so as to ensure that the Board decision
and underlying RO decision have no preclusive effect in the
adjudication of any future claim by a survivor of the Veteran.
Accordingly, pursuant to the decision of the Court, the Board
hereby vacates the June 2005 RO decision to the extent it denied
an effective date earlier than November 20, 1997, for service
connection for solar urticaria.
ORDER
The June 2005 RO decision denying an effective date earlier than
November 20, 1997, for service connection for solar urticaria, is
vacated.
_____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
[Copy of VA Form 4597, Appeal Rights, attached to Decision]